Memphis Publishing Company v. Tennessee Petroleum Underground Storage Tank Board

IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT NASHVILLE
_______________________________________________________

)
MEMPHIS PUBLISHING COMPANY, ) Davidson County Chancery Court
) Docket No. 92-1435-I
Petitioner/Appellee. )
)
VS. ) C. A. NO. 01A01-9607-CH-00300
)
TENNESSEE PETROLEUM )
UNDERGROUND STORAGE TANK )
BOARD and J. W. LUNA, AS
COMMISSIONER OF TENNESSEE
)
)
FILED
DEPARTMENT OF ENVIRONMENT )
AND CONSERVATION. ) May 9, 1997
)
Respondents/Appellants. ) Cecil W. Crowson
) Appellate Court Clerk
______________________________________________________________________________

From the Chancery Court of Davidson County at Nashville.
Honorable Irvin H. Kilcrease, Chancellor

John Knox Walkup, Attorney General and Reporter
Barry Turner, Deputy Attorney General
Attorneys for Respondents/Appellants.

S. Russell Headrick,
Stephen P. Hale,
Lucian T. Pera,
Kathy Laughter Laizure,
ARMSTRONG, ALLEN, PREWITT, GENTRY, JOHNSTON & HOLMES,
Memphis, Tennessee
Attorneys for Petitioner/Appellee.

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S. : (Concurs)
LILLARD, J. : (Concurs)
 This case is on appeal for the second time. The Tennessee Petroleum Underground

Storage Tank Board and J. W. Luna, as Commissioner of the Tennessee Department of Environment

and Conservation (hereinafter “Board” or “Appellants”), have appealed from the judgment of the

trial court declaring the appellee, Memphis Publishing Company (MPC), eligible for reimbursement

from the Tennessee Petroleum Underground Storage Tank Fund (Fund) for remediation expenses

incurred as a result of a release from its underground storage tank in August 1987. The trial court’s

decision came after remand from the Middle Section of this Court in Memphis Publishing Company

v. Tennessee Petroleum Underground Storage Tank Board, No. 01A01-9305-CH-00202, 1993 WL

476292 (Tenn. App. Nov. 19, 1993), perm. app. denied, c.r.o. There, the court confronted the issue

of whether MPC had a right to Fund reimbursement under the Tennessee Petroleum Underground
1
Storage Tank Act (Act), T.C.A. § 68-215-101 et seq., as originally enacted. It was argued that

MPC had no right to reimbursement because its release occurred prior to the effective date of the

Act, July 1, 1988. This Court, speaking through Judge Lewis, held that the Act, as originally

enacted, “was intended to cover, from a Fund reimbursement perspective, all releases regardless of

date.” Upon remand, the trial court held the court of appeal’s decision “law of the case” and ruled

as hereinabove set forth. It is urged on appeal that the decision rendered in Memphis Publishing

is not the “law of the case” regarding MPC’s Fund eligibility and that the trial court erred in so

holding. For reasons hereinafter stated, we affirm.

The underlying facts of this case are amply set forth in Memphis Publishing. For our

purposes, we reiterate here as follows: In September 1990, MPC filed an application with the Board

for reimbursement from the UST Fund for assessment and remediation expenses incurred in

connection with a release at its UST site. MPC discovered and reported the release prior to July 1,

1988, but the majority of its assessment and remediation efforts occurred afterwards. After a

contested case hearing, the Board denied MPC’s claim and issued a final decision and order finding

that MPC was not Fund eligible because its release had occurred prior to the Act’s effective date.

MPC sought judicial review in the chancery court, requesting, inter alia, that the court declare the

amendment to the original Act violative of both the Fourteenth Amendment and state constitution

1
The Act was amended in April 1990 to read: “[i]t is the intent of the general assembly
that this chapter shall not apply retroactively to releases or other events that occurred prior to July
1, 1988.” T.C.A. § 68-215-102(c).
and representative of prohibited retrospective legislation. The chancellor perceived the issue before

it as “[w]hether the provisions of T.C.A. § 68-215-102(c), which were part of the 1990 amendment

to the UST Act, constitute unconstitutional retrospective legislation?” In affirming the decision of

the Board, the chancellor held, in part, as follows:

The UST Act became effective July 1, 1988. . . .

....

The UST Act was amended in April of 1990. The amendment
supports the legislative intent that the UST Act is not to apply to
releases which occurred prior to the effective date of July 1, 1988.
It states that “[i]t is the intent of the general assembly that this chapter
shall not apply retroactively to releases or other events that occurred
prior to July 1, 1988.” See T.C.A. § 68-215-102(c).

The petitioner submits that it had a vested right to claim
reimbursement from the fund established by the UST Act, and that
the 1990 amendment impairs this right. The provisions of the Act
establishing the UST Fund create new substantive rights, and cannot
be retroactively applied. See Anderson v. Memphis Housing
Authority, 534 S.W.2d 125, 127 (Tenn. App. 1975). The provision
added by the 1990 amendment simply confirmed and ratified the
original intent of the General Assembly that the UST Act is not to be
given retrospective application.

It is undisputed that MPC discovered and reported the release
from its underground storage tank in August of 1987. The
Department has consistently followed its policy of using the date of
the discovery of the release as the applicable date under the UST Act.
MPC’s actions took place well before the effective date of the UST
Act on July 1, 1988. This Court concludes that MPC never had a
vested right to claim reimbursement from the fund because the Act
does not apply to releases, like MPC’s, that occurred prior to the July
1, 1988 effective date of the Act.2

MPC appealed from the chancellor’s decision3 and, as noted, this Court, upon review,

2
This portion of the chancellor’s decision is set forth verbatim in the Memphis
Publishing opinion. Memphis Publishing, 1993 WL 476292 at *2.
3
Pursuant to Rule 24(b) T.R.A.P., MPC submitted a “statement of issues to be presented
on appeal,” identifying the issues it intended to present for appellate review as follows:

1. Whether the trial court erred in holding that appellant had no right to
reimbursement from the Tennessee Petroleum Underground Storage Tank Fund
(“Fund”) under chapter 984 of the Tennessee Public Acts of 1988 (the “Original
Act”).
2. Whether the trial court erred in construing Tenn. Code Ann. §§ 68-53-
101 to - 128 (the “Act”), as amended in 1990, to limit reimbursement from the
Fund to expenses incurred in connection with releases that occurred after July 1,
1988, the effective date of the Original Act.
3. Whether the trial court erred in finding that the 1990 amendment (1990
reversed. We quote from the court’s decision in Memphis Publishing as follows:

MPC presents the following issue for our consideration:
“Whether the trial court erred in holding that MPC had no right to
reimbursement from the Fund under the Original Act,” which became
effective 1 July 1988. . . .

....

We find nothing in the sweeping nature of the perceived
problems addressed by the Original Act, the description of the
comprehensive regulatory mechanism, nor the description of the
broad purposes of the Fund, to suggest or imply any date limitation
on the “releases” covered under the Original Act.

....

The enforcement authority created by the Original Act is not
limited to releases commencing after its effective date. . . .

....

Both the Board and the Chancellor, in determining that MPC
was not entitled to recover, relied on the 1990 Amendment which set
forth the general assembly’s “intent” to restrict recovery to releases
or other events which occurred after 1 July 1988.

While a later general assembly’s understanding of what an Act
intended is not binding, it is entitled to deference. See, United States
v. Stauffer Chem. Co., 684 F.2d 1174, 1187 (6th Cir. 1982), aff’d,
464 U.S. 165 (1984). Legislative interpretation of a prior statute is
entitled to respectful consideration, but is not controlling on the
courts. Interstate Life & Accident Co. v. Hunt, 171 Tenn. 119, 126,
102 S.W.2d 55, 56 (1937).

Following the fundamental rule of statutory construction, this
court must ascertain and give effect to the intention or purpose of the
legislature as expressed in the statute. Parkridge Hospital, Inc. v.
Woods, 561 S.W.2d 754, 755 (Tenn. 1978).

We are of the opinion that the legislature intended to cover all
releases without regard to the date on which they may have occurred.

....

Tenn. Pub. Acts 399, ch. 855, § 1) to the Original Act is not unconstitutional
retrospective legislation.
4. Whether the trial court erred in relying upon inadmissible and irrelevant
evidence of legislative intent in aid of its construction of the Act and the Original
Act.
5. Whether the trial court erred in finding that MPC is not “fund eligible”
under the Act.
6. Whether respondents acted arbitrarily and capriciously in denying
appellant’s application for reimbursement from the Fund based on their
inconsistent application of the Act respondent’s regulations.
7. Whether respondents’ inconsistent application of the Act and
respondents’ regulations to appellant is unconstitutional in that it violated
appellant’s Tennessee and federal constitutional rights to equal protection.
 . . . we find nothing in the effective date provision of the
Original Act to suggest that it was not to be applied to releases or
events occurring prior to 1 July 1988. . . . Significantly, neither of the
two sections of the Original Act that establishes the Fund and grants
to MPC and others a right to reimbursement for certain remediation
expenses, in any way limits the availability of reimbursement to those
expenses relating to releases commencing before or after a certain
date. . . .

The Original Act was intended to cover, from a Fund
reimbursement perspective, all releases regardless of date. . . . This
issue is sustained.

Because of our holding regarding this issue, we pretermit all
other issues raised by MPC. The judgment of the trial court in
affirming the decision of the Board and Commissioner is reversed and
the cause remanded to the trial court for further, necessary
proceedings.

Memphis Publishing, 1993 WL 476292 at *4-7.

The Board’s application for permission to appeal to the supreme court was denied,

concurring in results only. Upon remand to the chancery court, MPC filed a motion “for order

reversing final decision and order of the [Board] and remanding cause to Tennessee Department of

Environment and Conservation” with the directive that the Department reimburse MPC its

reasonable and necessary remediation expenses from the Fund. An “agreed order” was then entered

with the trial court wherein the parties waive remand back to the Board and agree to submit the

matter, upon the existing administrative record, to the chancery court’s jurisdiction “to resolve the

issues remaining.” Pursuant to the order, the issues to be resolved were: “(1) whether MPC’s right

to reimbursement from the [Fund] vested prior to the effective date of [§ 68-215-102(c)] and (2)

whether MPC’s application for reimbursement is fund eligible under applicable law.”

Upon review, the chancellor entered its “Final Judgment and Order After Remand,”

declaring MPC’s application for reimbursement Fund eligible and remanding the matter to the Board

for review of MPC’s application for the sole purpose of determining the reasonableness of its

claimed expenses. The court found:

MPC asserts that the Court of [Appeals’] opinion is the “law
of the case” on remand. This Court agrees. The decision of the Court
of Appeals makes it clear that the petitioner’s release is to be covered
regardless of the date on which the release occurred. The Supreme
 Court’s concurrence “in results only” does not change this fact.

Appellants identify the issues on this appeal as follows:

1. Is this Court’s prior decision “Law of the Case” when in
response to an application for permission to appeal that decision, the
supreme court denied the application, but concurred only in the result
reached by this Court?

2. If this Court implicitly ruled in its prior decision that
[MPC] had a vested right to reimbursement that is unconstitutionally
impaired by Tenn. Code Ann. § 68-215-102(c), is this implicit
constitutional ruling “Law of the Case”?

3. Did the contingent statutory right to reimbursement
conferred by the retroactive application of the UST fund in 1988
become a constitutionally recognized “vested right” before § 68-215-
102(c) went into effect?

4. In 1990, the general assembly amended the UST Act by
adding § 68-215-102(c), which expressly provides that no provision
of the Act shall apply retroactively to a release that occurred prior to
July 1, 1988. Does this statute unconstitutionally impair vested rights
in violation of the state or federal constitution?

It is the Board’s position that the prior decision of this Court cannot constitute the

“law of the case” for reasons that: (1) the Tennessee Supreme Court disposed of its application for

permission to appeal by concurring only in the results reached by the court of appeals and (2) any

decision rendered by the intermediate court regarding the constitutional “vested rights” issue and the

constitutionality of § 68-215-102(c) was, at most, implicitly decided. As to the latter, it is argued

that an implicit decision regarding the constitutionality of a duly enacted law of the legislature should

not be afforded “law of the case” status. Appellants further assert that it is more likely that these

were issues expressly pretermitted by the court.

As to the first ground, Appellants rely upon Clingan v. Vulcan Life Ins. Co., 694

S.W.2d 327 (Tenn. App. 1985). Clingan ruled that a prior decision of the court of appeals was not

law of the case, in part, because the supreme court had denied the defendant’s permission to appeal,

concurring in results only. Clingan, 694 S.W.2d at 331. Clingan also expressed an additional

reason for its decision. Under the facts in Clingan, the court of appeals’ prior decision reversed the

trial court’s entry of summary judgment in favor of the defendant, finding that there were issues of
fact that should be submitted to a jury. On remand, the case was tried before a jury. At the close of

proof, the defendant moved for a directed verdict which was denied by the trial court. The jury

returned a verdict for the plaintiff. On the second appeal, the defendant raised the issue of the trial

court’s alleged error in denying the motion for directed verdict. Id. at 329. The plaintiffs relied upon

the supreme court case of Life & Casualty Insurance Co. v. Jett, 133 S.W.2d 997 (Tenn. 1939), to

argue that the court of appeals’ prior decision was “law of the case,” precluding the trial court’s

directing of a verdict for the defendant.

Jett involved two trials. Id. at 331. After the first, a verdict was directed for the

defendant. Upon appeal, the court of appeals reversed the trial court finding factual questions for

a jury’s determination. A second trial resulted in a verdict for the plaintiff. On appeal to the

supreme court, that court held that the first opinion of the court of appeals was the law of the case

on the second trial as the evidence in both trials was the same, thus, precluding the trial court from

doing anything other than submitting the factual issues to the jury for determination. Id.

The court in Clingan expressed its agreement with the Jett holding, but distinguished

the case before it by noting that in Jett, “[t]he verdict was directed in the first case after a trial on the

facts which the court found to be substantially the same in both cases. In the case at bar summary

judgment was granted without a trial on the merits.” Id. To the extent that Clingan stands for the

proposition that a decision in a prior appeal only becomes the law of the case in subsequent stages

of the litigation where the facts, issues and evidence in the later actions are substantially the same

as those before the court in the prior appeal, we agree. See Leo Eisenberg & Co. v. Payson, 785

P.2d 49, 53 (Ariz. 1989). However, as to whether the supreme court’s denial of an appeal,

concurring in results only, precludes the intermediate court’s decision from becoming the law of the

case, we agree with the rationale expressed in Ladd v. Honda Motor Co., 939 S.W.2d 83 (Tenn.

App. 1996). This Court, speaking through Judge Koch, discussed the law of the case doctrine at

length as follows:

The law of the case doctrine is a discretionary rule of practice
that promotes judicial economy and consistency and also protects
litigants from the burdens of repeatedly rearguing issues that have
been decided. 18 Charles A. Wright et al., Federal Practice and
Procedure § 4478, at 788-90 (1981). It is not a limitation on a
 court’s power like the doctrine of res judicata, but rather it is a
common sense recognition that issues ordinarily need not be revisited
once they have been litigated and decided. Messinger v. Anderson,
225 U.S. 436, 444, 32 S.Ct. 739, 740 (1912); Mendenhall v. Barber-
Greene Co., 26 F.3d 1573, 1582 (Fed.Cir.), cert. denied, 115 S.Ct.
582 (1994).

Under the law of the case doctrine, an appellate court’s
decision on an issue of law becomes binding precedent to be followed
in later trials and appeals of the same case involving the same issues
and facts. Jones v. Jones, 784 S.W.2d 349, 351 n. 1
(Tenn.Ct.App.1989); Cook v. McCullough, 735 S.W.2d 464, 470-71
(Tenn.Ct.App.1987) (quoting Holcomb v. McClure, 64 So.2d 689,
691 (Miss.1953)); 1B James W. Moore & Jo Desha Lucas, Moore’s
Federal Practice ¶ 0.404[1] (2d ed.1995). The doctrine applies to
issues that were actually before the court, Barnes v. Walker, 191
Tenn. 364, 374, 234 S.W.2d 648, 652 (1950), or to issues that were
necessarily decided by implication. 18 Wright et al., supra, § 4478,
at 789. It does not apply to dicta. Ridley v. Haiman, 164 Tenn. 239,
248-49, 47 S.W.2d 750, 752-53 (1932); Schoen v. J.C. Bradford &
Co., 667 S.W.2d 97, 101 (Tenn.Ct.App.1984). . . .

The application of the law of the case doctrine to intermediate
appellate court opinions does not necessarily depend upon whether
the opinion has been reviewed by the Tennessee Supreme Court. The
doctrine has been applied to decisions that have not been reviewed by
the Supreme Court, Bivins v. Hospital Corp. of Am., 910 S.W.2d
441, 447 (Tenn.Ct.App.1995), as well as to decisions that the
Supreme Court has declined to review. Life & Casualty Ins. Co. v.
Jett, 175 Tenn. 295, 299, 133 S.W.2d 997, 998-99 (1939); State ex
rel. Kirkpatrick v. Tipton, 670 S.W.2d 224, 226 & n. 5
(Tenn.Ct.App.1984). Obviously, it does not apply to intermediate
appellate court opinions that have been reversed or vacated. While
some question exists with regard to its application to intermediate
appellate court decisions that the Supreme Court has declined to
review “concurring in results only,” we conclude that the doctrine
applies to these cases because the decision to concur only with the
results of an opinion simply “evinces . . . [the] Court’s judgment that
the opinion of the . . . [intermediate appellate court] should not be
published.” Pairamore v. Pairamore, 547 S.W.2d 545, 548
(Tenn.1977).4 These decisions still have precedential value with
regard to the parties involved in the case. Patton v. McHone, 822
S.W.2d 608, 615 n. 10 (Tenn.Ct.App.1991).

Ladd, 939 S.W.2d at 90-91. (Footnotes omitted.) We conclude that the supreme court’s denial of

4
We note that Rule 4(4) of the Supreme Court Rules provides:

PUBLICATION OF OPINIONS--CITATION OF UNPUBLISHED
OPINIONS

....

No opinion of the Court of Appeals or the Court of Criminal Appeals shall
be published until after the time has expired for the filing of an application for
permission to appeal. If this Court grants the application, or denies the
application, concurring in result only, the opinion of the intermediate court shall
not be published.
the Board’s permission to appeal from this Court’s prior decision, by concurring with the results

only, does not preclude the decision from becoming the law of the case.

The Board also contends that the law of the case doctrine cannot apply to the

constitutional issues raised because they were either not decided (“pretermitted”) or determined only

by implication. To this end, the Board asserts that we are not precluded from further review of these

issues because issues regarding the constitutionality of legislative enactment cannot be decided by

implication but must be determined by the showing of “a clear analysis of how that law contravenes

the constitution.” It is the position of MPC that the issues were implicitly decided. MPC argues that

throughout the entire litigation, it has maintained that it had a vested right to reimbursement under

the Act as originally enacted and that the 1990 amendment was an unconstitutional deprivation of

that right.

Ladd holds that the law of the case doctrine applies to those issues necessarily

decided by implication. No exception is noted for those issues of a constitutional nature. Appellants

can point to no Tennessee case directly confronting the issue, but cite cases from various other

jurisdictions in support of their contention. First, in Kleinbart v. United States, 604 A.2d 861 (D.C.

App. 1992), the “merits division” of the court refused to apply the law of the case doctrine to a

“summary affirmance” of a pretrial detention order by the “motions division” of the court. The court

found that the issue (the standard of proof required in ordering pretrial detention based on risk of

flight) was not “thoroughly aired and definitively resolved” previously. Kleinbart, 604 A.2d at 867.

Kleinbart identified three reasons why it would not apply the doctrine: (1) the prior proceeding was

a “sua sponte summary affirmance” of a detention order, absent a government request for such relief

or even a government response to the defendant’s argument on the issue in his motion for summary

reversal; (2) the prior ruling was “an implicit appellate ruling on the issue in a summary proceeding

without articulation of any supporting reason;” and (3) the ruling had “significant constitutional

implications.” Id.

In United States v. Ferri, 686 F.2d 147 (3rd Cir. 1982), the appellee argued that the

prior decisions of the Supreme Court and court of appeals remanding the case was an implicit

determination that the district court had jurisdiction to consider the appellee’s claim, thus, invoking
the law of the case doctrine on the issue of jurisdiction. Ferri, 686 F.2d at 157. Ferri held:

There is . . . no indication that the Supreme Court specifically
considered the jurisdictional issue presently before us. . . . Although
[the appellee] is correct, as the government concedes, that the
jurisdictional argument was presented to this court in the
government’s petition for rehearing of our [decision to remand to the
district court], our summary denial of that petition cannot be viewed
as a determination, sufficient to trigger law of the case consequences,
that the district court had jurisdiction to consider [the appellee’s]
claim.

Id. We do not find the foregoing dispositive of the issue as both cases involve “summary”

proceedings where no reason at all is articulated for the courts’ rulings.

Appellants also direct our attention to United States v. Curtis, 683 F.2d 769 (3rd Cir.

1982), where the court refused to apply the law of the case doctrine to the issue of the defendant’s

constitutional right against double jeopardy. The prior decision of the court involved consideration

of the defendant’s conviction, resulting in a remand for a new trial. Curtis, 683 F.2d at 771. Curtis

found that the order for new trial “could be viewed as an implicit determination that, notwithstanding

the double jeopardy clause or any other constitutional or statutory provision, a new trial was

permissible and appropriate in [the defendant’s] case.” Id. Curtis, however, found that there was

“no advertence” in the court’s prior opinion regarding the double jeopardy concerns and thus, “no

evidence” that the court specifically considered those concerns when ordering a new trial. Id. at 772.

The court also noted that neither party had argued the double jeopardy issue before the first panel

of the court. Id. Curtis held that it would not “infer rejection of an allegation of a constitutional

violation in the absence of some judicial statement that the contention has been considered and

rejected.” Thus, the court would “not conclude that [the defendant’s] double jeopardy claim was

definitively resolved by the order of this Court on his initial appeal.” Id.

Finally, in Locricchio v. Evening News Ass’n, 476 N.W.2d 112 (Mich. 1991), the

Michigan Supreme Court refused to uphold the intermediate court’s application of the law of case

doctrine to its prior decision involving the denial of a summary judgment motion. After denial, the

plaintiffs’ case for libel proceeded to a jury trial with a verdict being rendered in favor of one of the

plaintiffs. The trial court, however, directed a verdict for the defendant. On appeal, the intermediate
court applied the law of the case doctrine to its prior opinion on summary judgment and reversed the

trial court. Locricchio, 476 N.W.2d at 114. Locricchio held that the court of appeals erred in

relying on the law of the case doctrine “instead of independently reviewing the record in a libel case

of First Amendment import.” Id. at 115. The court continued:

[I]n a libel case affecting constitutionally protected public discourse,
. . . the law of the case doctrine must yield to a competing doctrine:
the requirement of independent review of constitutional facts.

The determination on summary judgment that the plaintiffs’
complaint stated a cause of action for defamation by implication
should not have abrogated the appellate court’s duty to independently
review the record to determine whether, in fact, the plaintiffs carried
their burden of proof at trial regarding falsity at the post-trial directed
verdict stage.

Id. at 123. (Footnotes omitted.) We find the proceedings in Locricchio somewhat akin to those in

Clingan, with both yielding similar results. We, however, do no find Locricchio dispositive of the

issue before us.

After careful review, we find that the constitutional issues (“vested rights” and

constitutionality of § 68-215-102(c)) were squarely before this Court for decision in the first appeal

of this case. The issues had been argued to and expressly addressed by the trial court and presented

as issues for appellate review. The trial court, in its initial decision, expressly states the position of

MPC from the standpoint that it believed it had a vested right of Fund reimbursement and that the

amendment was an unconstitutional deprivation of that right. Moreover, this Court’s opinion in

Memphis Publishing makes clear that the court considered the effect of the 1990 amendment on

MPC’s right to reimbursement when stating the positions of the Board and the chancellor in denying

MPC a right to recover on the basis of the amendment. Acceptance of the Board’s position that the

appellate court did not decide these issues requires the conclusion that the case was remanded to the

trial court for a determination of an issue it had previously decided in the Board’s favor, that MPC

“never had a vested right to claim reimbursement from the fund.” A determination regarding these

issues by the court of appeals was essential in its decision to reverse the trial court. Unlike Curtis,

where there was uncertainty as to whether the issue had even been addressed, here the only plausible

construction of the appellate court’s decision is that the issues were implicitly decided. Any other
construction would render the prior decision of this Court meaningless and result in an incomplete

resolution of the issues squarely before it. Accordingly, we conclude that the law of the case

doctrine applies to this appeal and that we are therefore precluded from considering the latter issues

raised by Appellants.

The judgment of the trial court is affirmed and this cause remanded to the trial court

with instructions that the matter be remanded to the Board for a determination regarding the

reasonableness and necessity of MPC’s claimed expenses. Costs are assessed against Appellants,

for which execution may issue if necessary.

______________________________
FARMER, J.

______________________________
CRAWFORD, P.J., W.S. (Concurs)

______________________________
LILLARD, J. (Concurs)